Right of Election

What to do if your spouse disinherits you? Is there legal action you can take? Are you up the creek without a paddle? The answer to all the aforementioned questions deals with the spouse’s right of election.

Under New York state law, whether a spouse dies with or without a will, a spouse is entitled to ”an elective share” of his or her spouse’s estate. This elective share is one-third of the spouse’s assets.

The assets included in the elective share are all items that pass through a will. It also includes, pursuant to New York Estates Power and Trust Law Section 5-1.1d, ”testamentary substitutes…which include gifts causa mortis or within one year of death, Totten trusts or pay on death registration accounts, joint accounts, revocable transfers, or transfers with a retained income interest, many retirement accounts and property owned by a decedent and payable on his death to someone other than the surviving spouse for his estate.”

The right of election gives the surviving spouse the choice between accepting what he or she received in a will or under intestacy, or the greater of $50,000 or one-third of the estate.

If you are a spouse and you find yourself in a situation where you feel you are not being treated fairly in a will, it is important to obtain advice from an estate attorney who can calculate your elective share and determine whether you should move forward and file the right of election with the Surrogates Court.

Put Our Experience to Work for You

With offices throughout the New York metropolitan area, including Queens and Nassau counties, the Law Offices of Elliot S. Schlissel has earned its reputation for excellence by providing experienced representation and unsurpassed personal service.

The average experience of our estate planning attorneys and staff is over 30 years. Our lawyers have handled thousands of estate plans, from drafting and reviewing simple wills to advising and preparing comprehensive estate plans that include wills, trusts, health care directives, Medicaid planning, powers of attorney, guardianships and other estate planning tools. When it comes to estate planning and elder law matters, experience really does matter.

We not only have multiple offices available for your convenience, but we also are willing to come to you if you are unable to make the trip to one of our offices.

To discuss your estate planning, elder care matter or Medicaid planning issue, please contact us for a free confidential consultation by calling us toll free at 1-800-344-6431, or in the five boroughs at 718-350-2802 and Nassau County at 516-561-6645. If you prefer, you may fill out our intake form below, and we will contact you.

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